Lynip v. Buckner

The law of 1891 directs that the number of each ballot shall be the same as that of the corresponding stub (sec. 12), and that the number of the ballot shall be written upon the registry list, opposite the name of the voter receiving it (sec. 19). After preparing the ballot, it must be delivered to the inspector, who shall separate the strip bearing the number from the ballot, and deposit the ballot in the ballot box (sec. 20).

At Rebel Creek precinct, the inspector, through ignorance of the law, and not willfully, neglected to separate the strip bearing the number from the ballot. The entire vote of the precinct was cast in this way. The act of the inspector was in direct disobedience to the requirements of the law, which, in section 20, declares that the strip and number shall be destroyed before the ballot is cast; and by section 24, that no ballot shall be deposited in the ballot box unless the slip containing the number of the ballot has been removed by the inspector.

I refer to these provisions, not as authorizing the canvassers to throw out the ballots, but as illustrating the intention of the legislature in passing the statute providing for a secret ballot. The prohibition against counting ballots is contained in the twenty-sixth section of the act, as follows: "Sec. 26. In counting the votes any ballot not bearing the water mark as provided in this act, shall not be counted, but such ballot must be preserved and returned with the other ballots. When a voter marks more names than there are persons to be elected to any office, or if for any reason it is impossible to determine the voter's choice for any office, his vote for such office shall not be counted. Any ballot upon which appears names, words or marks, written or printed, except as in this act provided, shall not be counted." Under the last sentence of this section, these ballots should not be counted. The purpose of the act, as expressed in its title, is "An act relating to elections and to more fully secure the secrecy of the ballot." No act of the inspectors was so well calculated to expose the vote, and defeat the intention of the legislature, as their neglect to destroy the number on the slip. Any person, upon inspection of the registry list, could have ascertained the vote of each elector.

I admit that if my views are to be adopted the voters of the precinct at that election will be disfranchised, but I am confronted with what I think are clear and imperative provisions of law, incapable of judicial construction. Under the English law of 1872, the presiding officer at the polling station marked upon the face of the ballot given to each the number of the voter appearing on the burgess roll, which would enable any one, upon inspection, to identify the way in which the party had voted. It was held that these ballots were void, and should not have been counted; but the error did not affect the result of the election; the prevailing candidate having been elected, irrespective of the contested ballots. (Woodward v. Sarsons, L. R, 10 C. P. 733.)

In West v. Ross, 53 Mo. 350, the law of Missouri required the ballots to be numbered, and provided that any ballot not numbered should not be counted. The judges of election, through inadvertence, neglected to number any of the ballots; but the court held that the statute was mandatory, and all of the ballots were rejected. The court said: "This case may be a hard case, and doubtless is; hut the legislative enactment is clear, and although it may deprive a portion of the citizens of the county of their right to be heard in the election of a clerk at one election, it is better that they should suffer this temporary privation than that the courts should habituate themselves to disregard or ignore the plain law of the land in order to provide for hard cases. In the present case the legislature has provided and required that the ballots should be numbered, and then provides, in express terms, that no ballot not numbered shall be counted. Can we say that such ballots shall be counted, without an attempt at judicial legislation? I think not, and it would be a misapplication of terms to say that such a statute is only directory."

For these reasons I dissent from the judgment.